Response of UnionsWA to the proposed Labour Relations ... · proposed Labour Relations Legislation...

Response of UnionsWA to the proposed Labour Relations

Legislation Amendment and Repeal Bill 2012

Contact Details Phone: 08 9328 7877

Fax: 08 9328 8132 Street Address: Level 4, 445 Hay St, Perth WA

6000 Postal Address: PO Box Z 5380 St Georges Tce,

PERTH WA 6831

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Response of UnionsWA to Labour Relations Amendment Bill

Contents

Introduction ............................................................................................................................................ 5

List of recommendations ........................................................................................................................ 7

Structure of the WA Industrial Relations Commission (WAIRC) ........................................................... 14

President’s position abolished, with a Supreme Court Justice being made available as required for a full bench hearing. ............................................................................................................................ 14

Conditions of service ......................................................................................................................... 14

Commission determining matters without a hearing ....................................................................... 14

Powers of the Commission to dismiss trivial or vexatious matters ................................................... 15

Power to Order Costs ........................................................................................................................ 15

Intervention by Minister .................................................................................................................... 16

Award variations ............................................................................................................................... 16

Abolition of Constituent Authorities – a missed opportunity ............................................................ 17

Awards & Award modernisation ........................................................................................................... 19

Award making functions of the Commission .................................................................................... 19

Award modernisation process .......................................................................................................... 20

No appeals from a decision of the Commission ................................................................................ 21

Making further modern awards ........................................................................................................ 21

Consultation with the parties during the modern award process .................................................... 21

The Form and Content of State Awards ............................................................................................ 21

Time and resources for the Award modernisation process ............................................................... 23

Basis for cancelling awards ............................................................................................................... 23

Removing provision for Boards of Reference for Awards ................................................................. 23

Removing the Commission’s power to vary awards on its own motion to meet statutory and minimum wage requirements ........................................................................................................... 24

Awards not enforced until they have been in place for 21 days ....................................................... 24

Industrial Agreements and Enterprise Orders ...................................................................................... 25

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Expiry, Replacement and termination of Industrial Agreements ...................................................... 25

Statutory conditions to be satisfied before agreements can be registered ...................................... 25

The power to vary, renew or cancel and industrial agreement ........................................................ 25

Amendments about unfair dismissal .................................................................................................... 27

New terms for ‘dismissed’ and ‘unfairly dismissed’ .......................................................................... 27

Jurisdiction of the Commission .......................................................................................................... 27

Minimum employment period and period of employment ............................................................... 27

Concept of ‘small business employers’ .............................................................................................. 28

Determining a ‘genuine redundancy’ ................................................................................................ 28

Unfair dismissal for apprentices, trainees and contract employees ................................................. 28

Determining whether a dismissal is harsh, unjust or unreasonable ................................................. 29

Reducing the term by which unfair dismissal can be claimed .......................................................... 29

Compensation caps and ‘shock, distress, humiliation and hurt’ ....................................................... 30

Adopting an adverse actions regime for WA .................................................................................... 30

General Orders (including State Minimum Wage Orders).................................................................... 32

Date of State Wage Order ................................................................................................................. 32

Considerations for making the State Wage Order ............................................................................ 32

Equal Remuneration Orders .............................................................................................................. 33

Holding hearings for the state wage case......................................................................................... 33

Considering social inclusion in the state wage case ......................................................................... 34

Increasing the minimum wage each year ......................................................................................... 34

General Orders as to Public Sector Discipline ................................................................................... 34

Amendments about Organisations and Associations ........................................................................... 36

Conduct resulting in disqualification from holding office ................................................................. 36

Freedom of Association ........................................................................................................................ 38

Inclusion of independent contractors in ‘freedom of association’ provisions ................................... 38

Recognition of the rights of union delegates .................................................................................... 39

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Industrial Agents ................................................................................................................................... 40

Code of ethical conduct ..................................................................................................................... 40

Amendments about the State Employment Standards (SES) ............................................................... 41

Continuous service in transmission of business ................................................................................ 41

Requests for leave in SES ................................................................................................................... 41

‘Under-rate employees’..................................................................................................................... 42

The SES should be implied into industrial instruments ..................................................................... 42

Reassessing the pay scale for employees with a disability ............................................................... 42

No cashing out of annual leave ......................................................................................................... 43

No exclusion of monetary entitlements for paid leave ..................................................................... 43

Upper limit on ordinary hours in industrial agreements ................................................................... 44

‘Authorised’ and ‘Impermissible’ pay deductions ............................................................................. 44

Disclosing the purpose of personal leave .......................................................................................... 45

Giving two week’s notice of leave absence ....................................................................................... 46

Paid public holidays during leave ...................................................................................................... 46

Capping redundancy pay................................................................................................................... 46

Weakening of TCR Order’s ‘Job Search Entitlement ......................................................................... 46

‘Introduction of Change’ and ‘Consultation before Termination’ ..................................................... 47

Right of Entry (RoE) ............................................................................................................................... 48

No evidence of problems with current system .................................................................................. 48

Definition of ‘affected employer’ ...................................................................................................... 48

Right to investigate breaches for all workers ................................................................................... 48

Access to all necessary records when investigating a breach ........................................................... 49

Timeframes for producing employment records ............................................................................... 49

No restriction on employee discussion .............................................................................................. 50

No restrictions on Right of Entry on Health and Safety matters ....................................................... 50

Who receives a Right of Entry notice? .............................................................................................. 51

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Restrictions on notice holders about where to hold discussions and the routes they take to discussions ......................................................................................................................................... 51

Qualification ‘unduly hinder’ should apply to employer ................................................................... 52

‘Fit and proper person’ tests ............................................................................................................. 52

Revoking Right of Entry permits ........................................................................................................ 53

Awards and orders or registered industrial agreements containing entry and inspection provisions additional to those in the Act ............................................................................................................ 54

The proposed ‘civil penalties’ regime ................................................................................................ 54

Access to remote accommodation .................................................................................................... 55

Reasonable meeting locations .......................................................................................................... 55

Conclusion ............................................................................................................................................. 57

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Introduction

UnionsWA is the peak body for the union movement in Western Australia. UnionsWA represents 30 affiliate unions, who in turn represent approximately 140,000 Western Australian workers.

The Department of Commerce’s most recent analysis of the number of workers in the state industrial relations (IR) system estimates that it could be between 21.7 per cent and 36.2 per cent of WA employees. Up to 438,100 workers could therefore be impacted by the changes proposed in the draft Labour Relations Legislation Amendment and Repeal Bill 2012.

The state IR system covers the WA state public sector, local government, the community services sector and unincorporated businesses in the private sector. According to the Department, in May 2010, unincorporated employers were more likely to be in the industries of

rental, hiring and real estate services (76.7 per cent unincorporated employers);

other services1 (55.1 per cent);

accommodation and food services (54.6 per cent);

administrative and support services (39.9 per cent); and

retail trade (36.1 per cent)2

The 2009 Australia at Work Report by the Workplace Research Centre found that employees who were less likely have the power to negotiate their pay and conditions were likely to be aged less than 24 years, female, and in precarious employment arrangements.3 In WA at the end of the November Quarter of 2012, those industries with unincorporated private sector businesses most likely to be in the state system had employees who were

55 per cent female

32 per cent aged 15-24 years

44 per cent working part time

By contrast, for WA employees as a whole, 44 per cent are women, 17 per cent are aged 15-24 years, and 28% are part time. 4

Given that vulnerable groups of employees appear to be over-represented within the private sector of the state industrial relations system, maintaining their rights in the workplace should be a key focus of any reform to that jurisdiction. Having a majority female workforce is particularly significant given that WA’s gender earnings gap of 26.9 per cent continues to be far higher than the national

1 According to the Australian Bureau of Statistics, ‘The Other Services Division includes a broad range of

personal services; religious, civic, professional and other interest group services; selected repair and maintenance activities; and private households employing staff.’ 1292.0 - Australian and New Zealand Standard Industrial Classification (ANZSIC) http://www.abs.gov.au/AUSSTATS/[email protected]/Latestproducts/14074305CC4FA750CA25711F00146E4A?opendocument 2 Department of Commerce, Labour Relations,

http://www.commerce.wa.gov.au/LabourRelations/Content/Employers/About_IR_in_WA/Western_Australian_industrial_.html 3 van Wanrooy, B, Wright, S, Buchanan, J, Baldwin, S, Wilson, S, Australia at Work in a Changing World,

Workplace Research Centre (2009), pp.69-72, http://www.australiaatwork.org.au/temp-1913374402.php 4 ABS 6291.0.55.003 - Labour Force, Australia, Detailed, Quarterly, Nov 2012,

http://www.abs.gov.au/ausstats/[email protected]/PrimaryMainFeatures/6291.0.55.003?OpenDocument

http://www.abs.gov.au/AUSSTATS/[email protected]/Latestproducts/14074305CC4FA750CA25711F00146E4A?opendocument

http://www.abs.gov.au/AUSSTATS/[email protected]/Latestproducts/14074305CC4FA750CA25711F00146E4A?opendocument

http://www.commerce.wa.gov.au/LabourRelations/Content/Employers/About_IR_in_WA/Western_Australian_industrial_.html

http://www.commerce.wa.gov.au/LabourRelations/Content/Employers/About_IR_in_WA/Western_Australian_industrial_.html

http://www.australiaatwork.org.au/temp-1913374402.php

http://www.abs.gov.au/ausstats/[email protected]/PrimaryMainFeatures/6291.0.55.003?OpenDocument

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gap of 17.5 per cent.5 UnionsWA does not support legislation that undermines the fundamental rights of Western Australian workers. The risks are too great for award-reliant workers in the state system.

The Amendment Bill’s purported aim of harmonising the WA Industrial Relations (IR) Act with the Fair Work Act (FW) Act is not an accurate account of what is proposed. WA unions and the ACTU have criticised various aspects of the FW Act, and this Bill picks up only those parts of the national industrial relations system that are most unfavourable to workers without adopting any of the favourable parts. It also contains no provisions to ensure Premier Barnett’s guarantee in Parliament on 14 November 2012 that

no-one will be worse off under this legislation; I can guarantee that.6

The Amendment Bill as it stands neither harmonises with the FW Act, nor benefits the workers of WA. Those already on low pay in WA will fall further behind while costs of living continue to rise.

The most recent ABS Labour force data for January 2013 shows that WA has the lowest unemployment rate of all Australian states at 4 per cent, and the highest participation rate of all states at 68.9 per cent (only the territories have higher participation rates).7 The existing state IR system has provided a stable base for productive agreement making, and there is no evidence provided of any widespread problems that require solving by the proposals in this Bill.

Any changes that are introduced to the state IR system should ensure that workers under the new regime are no worse off than they have been under the current system. Accordingly, any harmonisation with the FW Act must not threaten the harmony of the state industrial relations system as a whole.

5 ABS 6302.0 - Average Weekly Earnings, Australia, November 2012,

http://www.abs.gov.au/ausstats/[email protected]/mf/6302.0 6 WA Legislative Assembly Hansard, (14 November 2012) p. 8554

7 ABS 6202.0 - Labour Force, Australia, Jan 2013,

http://www.abs.gov.au/AUSSTATS/[email protected]/DetailsPage/6202.0Jan%202013?OpenDocument

http://www.abs.gov.au/ausstats/[email protected]/mf/6302.0

http://www.abs.gov.au/AUSSTATS/[email protected]/DetailsPage/6202.0Jan%202013?OpenDocument

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List of recommendations

Structure of the WA Industrial Relations Commission (WAIRC)

For a Supreme Court Judge to sit on the full bench to replacing the President - both roles must be fully resourced.

Stronger protections against conflicts of interest are needed if Commissioners are to be allowed to undertake other paid work

The WAIRC must be required to hold hearings so that parties in a dispute can respond to new information in respect of a matter.

Increased WAIRC powers to dismiss ‘vexatious’ matters must incorporate similar protections against dismissing applications as offered under s587(2) of the Fair Work Act.

The WAIRC’s powers to order costs against workers must retain the exclusion for legal practitioner / agent costs.

The Minister should continue to be required to demonstrate that the state has a relevant interest before getting leave to intervene in WAIRC matters.

Notification of an agreed agent in lieu of each named employer should available throughout the Act.

Public sector employees should have the same workplace rights as private sector employees.

The Commission replacing the PSA and PSAB must have the authority to consider all industrial matters related to public sector employment, with those employees having full access to the same remedies as other employees.

The Commission replacing the Public Service Arbitrator (PSA) and Public Service Appeal Board (PSAB) must also be empowered to review breaches of public sector standards, and when dealing with Government Officers should have the power to award financial compensation in lieu of reinstatement for unfair dismissal.

Awards & Award modernisation

The proposed Award modernisation process is opposed in total.

The ability of the WAIRC to make interim awards should be retained

Objections to the creation of awards should continue to face a public interest test, with the onus of proof being on the objector.

The powers of the Commission to make ‘Public Sector Awards’ should be contingent on public sector workers having the same rights as those in the private sector.

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There must be safeguards in legislation to protect the present rights and conditions of award-reliant workers when considering whether to make an award.

UnionsWA’s proposed safeguard provisions for employees covered by modern awards should be included in each modern award and be appended them as a schedule. They should form part of the award safety net for both current and future employees.

Allow appeals to the Commission’s award modernisation decisions under Section 90 of the Industrial Relations Act.

Unions and employers should be able to apply to the Commission to create Modern State Awards.

The Legislation must refer to unions as parties to award creation, not just as organisations to be consulted.

State based award modernisation as proposed has only minimal principles to guide it. There needs to be a more comprehensive set of principles such as those in the FW Act’s ‘Modern Awards Objective’.

The timeframe proposed for award modernisation is too short. Instead of 12 months it should be two years.

Government should commit to providing funding to peak bodies for full time staff to undertake award modernisation.

There must be safeguards against employer groups making vexatious applications to cancel awards.

New Awards should continue to have fully functional Boards of Reference.

WAIRC must retain the power to vary awards on its own motion, to meet statutory and minimum wage etc requirements.

New awards should be enforceable from the day they are made.

Industrial Agreements and Enterprise Orders

Changes to the collective bargaining framework that remove the ability for a party to unilaterally withdraw from a collective agreement are supported – however the Bill needs more clarity as to the proposal’s impact on enterprise orders.

The proposed statutory conditions for the register of industrial agreements will hamper free collective bargaining and, particularly over matters such as Right of Entry provisions. They are also an attempt to override the powers of the WAIRC. Parties and the WAIRC should be free from this type of political interference.

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The WAIRC should retain its power to vary an agreement for the purpose of ‘omitting or varying a provision, however expressed, that authorises the employer to stand-down an employee’.

Amendments about unfair dismissal

The changes to unfair dismissal rights are opposed in total.

The state government should consult with stakeholders on the development of Fair Dismissal Codes before it adopts definitions of dismissal that are similar to those of the Fair Work Act.

The WAIRC’s jurisdiction to remedy unfair dismissal should not be limited.

The concept of ‘minimum employment periods’ should not be introduced into the WA system for unfair dismissal. The present emphasis on agreements between employers and employees on probation periods should be retained.

Casual employees should not have to demonstrate employment on a ‘regular and systematic basis’ and ‘a reasonable expectation of continuing employment’ to count towards continuous service.

The concept of ‘small business employers’ should not be introduced into the WA system for unfair dismissal.

The WAIRC should be able to determine what constitutes a ‘genuine redundancy’.

Parties to an award or agreement should be free to negotiate redundancy arrangements that are superior to those in the SES.

Proposed section 37E (2-3) adds unnecessary complications to the considerations of whether an employee under contract of employment can be considered to have been unfairly dismissed. This should be determined by the WAIRC.

Apprentices and trainees should not be excluded from accessing unfair dismissal.

The WAIRC should determine whether a dismissal is ‘harsh, unjust or unreasonable’ without the need to refer to prescribed legislated lists of criteria.

WA workers should continue to be able to claim unfair dismissal within 28 days of the dismissal having taken effect.

There should be no ‘cap’ for unfair dismissal compensation. The deliberations of the WAIRC should consider what is appropriate.

The WA government should incorporate the provisions against adverse action from the FW Act into the WA IR Act, to protect workplace rights and freedom of association and to

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provide protection from workplace discrimination.

General Orders (including State Minimum Wage Orders)

The date from which the new State Wage Order takes effect should remain as close as possible to the National Wage Order

Changes in the date of the State Wage Order must be accompanied by higher wage increases to compensate those workers most affected by the delay.

The words ‘to whom the order relates’ should not be added to the State Wage Order considerations about ‘the capacity of employers as a whole to bear the costs’ of a wage decision.

The WAIRC should be empowered, as is the FWC, to make Equal Remuneration Orders.

The requirement to hold hearings in the State Wage Case should not be abandoned; instead an approach similar to that of the Fair Work Annual Wage Review could be adopted.

The WAIRC should consider social inclusion when determining the minimum wage, as does the Fair Work Act.

There should be no changes to the current wording of the IR Act.

The Section on General Orders as to Public Sector Discipline must be retained in its entirety.

Amendments about Organisations and Associations

There is no evidence of any problems with current provisions concerning the disqualification of union official from holding office. This section is opposed in total.

Freedom of Association

As sole traders, independent contractors should not be included in ‘freedom of association’ provisions. Sole traders are not accorded benefits in other industrial relations legislation.

Provisions in the legislation dealing with independent contractors should prohibit sham contracting in the state system.

Freedom of association provisions should provide legislative recognition of the rights of union delegates.

Industrial Agents

There should be a Code of Ethical Conduct for Industrial Agents formulated in consultation

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with unions.

Amendments about the State Employment Standards (SES)

‘Continuous service’ in relation to transmission of business should not be redefined.

Under a transmission of business agreement, the period of service for a first employer should be counted towards the length of continuous service with a second employer.

SES should include requests for flexible working arrangements. It should also be extended to the same categories of workers as proposed by the Federal government.

The category of ‘under-rate employees’ needs to be reformulated to make them less vulnerable to unscrupulous employers. In particular those sections allowing such employees to effectively ‘contract out’ of the minimum wage should not be included in the SES as they represent a power imbalance in the workplace.

The SES as ‘minimum conditions of employment’ should continue to be implied into industrial instruments, safeguarding contractual rights as against the employer.

In light of the recent Nojin v Commonwealth of Australia Federal Court decision, the proposed pay scale for employees with a disability needs to be reassessed.

There should be no cashing out of annual leave.

All monetary entitlements (allowances, penalty rates, etc) relevant to what would have been earned had the employee worked during that period of time are relevant to determining the entitlement to paid leave and should not be excluded.

There should be upper limits on the number of ordinary hours which may be specified in an industrial agreement.

‘Authorised’ and ‘Impermissible’ pay deductions as proposed are open to abuse by employers. They should not be defined by regulation, or allowed to become a condition of employment.

Employees should not be required to disclose the purpose of their personal leave.

Onus should not be on the employee to demonstrate that their personal leave absence was caused by serious/wilful misconduct, or gross/wilful neglect, by the employer.

SES concerning when annual leave can be taken should be the MCE Act condition of giving employers two weeks’ notice, rather than requiring an agreement with the employer.

There should be a clear entitlement to paid public holidays during leave

Redundancy pay should not be capped at 12 weeks pay for seven years or longer.

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The new Act should incorporate s2.2 of the TCR general order ‘Job Search Entitlement’ rather than the proposed weaker ‘entitlement to paid leave for job interviews’.

The new Act should incorporate both the ‘Introduction of Change’ and ‘Consultation before Termination’ clauses of the TCR general order.

Right of Entry (RoE)

There is no evidence of any problems with current provisions concerning Right of Entry in the Western Australian industrial relations system. These changes are opposed in total.

The proposed definition of ‘affected employer’ should not be introduced into the state IR system.

The right to investigate possible breaches should not be restricted to only those impacting union members.

Access to non-member records should be permitted.

Existing provisions on the timeframes for the production of employment records should be retained.

The right for employees to hold discussions with their union should not be restricted only to during meal or other breaks.

Restricting Right of Entry on OSH to matters about which there is a ‘reasonable suspicion’ will favour employers and should not be introduced.

There should be no requirement to provide notice for Right of Entry on OSH matters.

Notice for Right of Entry should be not required to be given to the employer and the occupier of premises, only the employer.

There should be no restrictions placed on notice holders about where to hold discussions or how to get to where discussions will occur.

The qualification ‘unduly hinder’ should apply equally to the employer as to the permit holder in relation to hindering and obstructing conduct.

The proposed ‘fit and proper person’ qualifications are unfair and unworkable and are opposed.

Existing provisions on revoking right of entry permits should be retained.

Proposed restrictions of rights if an organisation or official has misused right of entry are draconian and fall disproportionately upon unions.

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Proposed mandatory lengths of suspension or revocation for a permit holder are harsh and draconian and should not be implemented.

WAIRC should be able to make awards and orders or register industrial agreements containing entry and inspection provisions that are additional to those described in the Act. Parties should be able to include any mutually acceptable provisions for union entry to a workplace, in enterprise agreements.

The proposed regime of ‘civil penalties’ are onerous for both individuals and organisations and should be opposed.

Access to a workplace should also include provisions to ensure

That where a union representative wishes to enter a worker accommodation village to consult with members or potential members, that union representative is permitted to do so as of right as though the worker accommodation village were a workplace proper.

That where an entire workplace is in a remote and difficult to access location, employers should proactively facilitate workers access to their union. E.g. allow reasonable time on site for worker to talk to union organisers (not just the designated breaks) if the workplace can only be reached after hours or days of travel.

Meeting locations should be deemed ‘unreasonable’ when

the location of the meeting is exposed to the elements whilst other enclosed and air conditioned/heated rooms are available;

the location has limited seating or has insufficient capacity to accommodate all of those employees who may wish to attend;

those attending the meeting and the conduct of the meeting can be observed by the employer or an agent of the employer; and

a site includes members or eligible members employed by different contractors, limiting the number of contract employees who can attend.

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Structure of the WA Industrial Relations Commission (WAIRC)

President’s position abolished, with a Supreme Court Justice being made available as required for a full bench hearing.

The proposed section 15 says

15. Constitution of Full Bench (1) The Commission as the Full Bench is to be constituted by —

(a) a judge assigned by the Chief Justice of Western Australia (the presiding member); and (b) not less than 2 commissioners assigned by the Chief Commissioner, sitting or acting together.

UnionsWA has previously agreed in principle that the WAIRC President’s position be abolished. However we question if a Judge of the WA Supreme Court can be made available as and when required for the new full bench given the workload and competing priorities of that court. The state government must commit to fully funding the Court and the WAIRC.

Recommendation

For a Supreme Court Judge to sit on the full bench to replacing the President - both roles must be fully resourced.

Conditions of service

The proposed new section 15A ‘Matters relating to presiding member of Full Bench’ raises the possibility of Commissioners undertaking other paid work. If this includes providing advice on employment law it may affect their partiality. The Bill needs clarity on whether Commissioners will be required to disclose any private clients. Otherwise there may be issues about delays pending contentions of bias.

Recommendation

Stronger protections against conflicts of interest are needed if Commissioners are to be allowed to undertake other paid work

Commission determining matters without a hearing

The proposed section 26 uses the word ‘if’ when referring to the WAIRC holding a hearing ‘in respect of a matter’.

If the WAIRC elects not to hold a hearing, this section allows it to make a finding on any matter or information that has not been raised before it by the parties, yet without having the parties address the new matter or information. UnionsWA regards this proposal as contrary to procedural fairness.

Recommendation

The WAIRC must be required to hold hearings so that parties in a dispute can respond to

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new information in respect of a matter.

Powers of the Commission to dismiss trivial or vexatious matters

The proposed section 27 of the Bill gives the WAIRC the power to dismiss matters if it is ‘satisfied’ as to the following

(i) that the matter or that part is vexatious, trivial or without substance; (ia) that the matter or that part has no reasonable prospect of success;

The amendment is unnecessary as the current section 27(1)(a) of the IR Act already allows WAIRC to dismiss an application. UnionsWA notes that the protections against dismissing applications offered under section 587(2) of Fair Work (FW) Act are not in this proposal. That section states

(2) Despite paragraphs (1)(b) and (c), FWA must not dismiss an application under section 365 or 773 on the ground that the application:

(a) is frivolous or vexatious; or (b) has no reasonable prospects of success.8

Given that harmonisation with the FW Act is the given reason for the Amendment Bill we recommend that it incorporates protections similar to those under section 587(2). This proposed change is particularly concerning given that the Amendment Bill proposes that the Commission should have the power to determine matters without a hearing (see section above).

Recommendation

Increased WAIRC powers to dismiss ‘vexatious’ matters must incorporate similar protections against dismissing applications as offered under s587(2) of the Fair Work Act.

Power to Order Costs

UnionsWA accepts the proposal to bring the state act broadly in line with s611 of the FW Act. However the removal of the exclusion in s27(1)(c) of the current Industrial Relations Act regarding ‘legal practitioner, or agent costs’ runs counter to maintaining a low cost, accessible and non legalistic tribunal. Persons with limited financial resources will find this amendment prohibitive.

8 Sections of the FW Act referred to are:

365 Application for FWA to deal with a dispute If: (a) a person has been dismissed; and (b) the person, or an industrial association that is entitled to represent the industrial interests of the person, alleges that the person was dismissed in contravention of this Part; the person, or the industrial association, may apply to FWA for FWA to deal with the dispute. 773 Application for FWA to deal with a dispute If: (a) an employer has terminated an employee’s employment; and (b) the employee, or an industrial association that is entitled to represent the industrial interests of the employee, alleges that the employee’s employment was terminated in contravention of subsection 772(1); the employee, or the industrial association, may apply to FWA for FWA to deal with the dispute.

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The proposed change represents a threat to persons with contentious but nevertheless genuine claims, as it will increase the possibility of financial ruin in pursuing their cases. Such persons do not always have adequate access to advice on the veracity of their claims. The WAIRC already has sufficient powers to dismiss inappropriate applications. There is no reason to add to the cost burden of bringing matters before it.

Recommendation

The WAIRC’s powers to order costs against workers must retain the exclusion for legal practitioner / agent costs.

Intervention by Minister

The proposed section 30 removes the need for the Minister to seek the Commission’s leave to intervene.

The Minister may intervene at any time on behalf of the State in proceedings before the Commission.

There is no justification for Ministerial intervention at large. The Minister should continue to be required to demonstrate that the state has a relevant interest in the matter. There is no evidence that current arrangements are causing problems.

Recommendation

The Minister should continue to be required to demonstrate that the state has a relevant interest before getting leave to intervene in WAIRC matters.

Award variations

The proposed section 40B(2) of the Amendment Bill says

(2) The Commission must not make an order under this section unless it has given the following persons notice of, and an opportunity to make submissions in relation to, the proposed variations —

(a) the named parties to the award; (b) UnionsWA; (c) the Chamber; (d) the Minister.

UnionsWA suggests reference to ‘named parties’ of awards being notified be will need to be interpreted differently in certain circumstances. For example Public Sector Awards can have numerous named public sector employing authorities who provide the Department of Commerce (DOC) with a standing warrant represent them. Therefore in matters before the Commission, service upon DOC can occur in lieu of service on all named public sector employers.

Recommendation

Notification of an agreed agent in lieu of each named employer should available throughout

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the Act.

Abolition of Constituent Authorities – a missed opportunity

The replacement of the functions and jurisdiction of the Public Service Arbitrator (PSA) and Public Service Appeal Board (PSAB) by a single commissioner is described as a ‘streamlining’ measure in the Explanatory Memorandum. However the changes are more far-reaching than is suggested by this description.

The PSAB is currently constituted as a tripartite tribunal, with employer and Union representatives. It will be fundamentally changed by a single Commissioner performing its functions and jurisdiction.

The 2009 Review of the Western Australian Industrial Relations System by Steven Amendola (Amendola Review) included a recommendation that

public sector employees have access to the unfair dismissal regime in the same way as private sector employees and have access to all remedies available to other employees, i.e. reinstatement or compensation in lieu of reinstatement.9

UnionsWA contends that ‘streamlining’ provides further support for removing the bar on public sector workers (including Government Officers) pursuing industrial matters before the WAIRC.10 Public sector employees should have the same rights as private sector employees.

Recommendations

Public sector employees should have the same workplace rights as private sector employees.

The Commission replacing the PSA and PSAB must have the authority to consider all industrial matters related to public sector employment, with those employees having full access to the same remedies as other employees.

The 2004 Whitehead review of the Public Sector Management Act recommended that the WAIRC have jurisdiction to review breaches of public sector standards. The current regime, administered by the Public Sector Commissioner, is massively underutilised. The 2011/12 Public Sector Commission Annual Report advises only 125 claims were received over the 12 month period, and only 11 claims were upheld.11 The current system reviews only process, ignores merit, and its findings on proven breaches are unenforceable. This Amendment Bill should take the opportunity to empower the WAIRC to review the Public Sector Commissioner’s decisions on Public Sector Standards.

Recommendation

The Commission replacing the Public Service Arbitrator (PSA) and Public Service Appeal Board (PSAB) must also be empowered to review breaches of public sector standards, and when dealing with Government Officers should have the power to award financial compensation in lieu of reinstatement for unfair dismissal.

9 Review of the Western Australian Industrial Relations System (2009), p.42.

10 See s80(E) (7) and s23(2a) of the Industrial Relations Act 1979

11 Public Sector Commission, Annual Report, 2011/12 p.26

http://www.publicsector.wa.gov.au/document/annual-report-2011/12

http://www.publicsector.wa.gov.au/document/annual-report-2011/12

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Awards & Award modernisation

UnionsWA opposes this proposed process. The WAIRC already has an award review process being carried out in consultation with the parties. No evidence is provided of any problems with the current process. However the proposed ‘modernisation’ process as outlined below risks leaving award-reliant workers worse off.

Recommendation

The proposed Award modernisation process is opposed in total.

Award making functions of the Commission

The deletion of section 36A removes the capacity of the WAIRC to make Interim Awards, and removes the onus on objectors to a new Award showing that the Award is not in the public interest.

Given that employees in WA are divided between state and federal jurisdictions on the basis of unsettled legal tests, and that there is the potential for employers and employees to ‘jurisdiction hop’ with changes state or federal industrial relations laws, employees benefit from objectors bearing the onus of showing that Award creation is not in the public interest.

Recommendations

The ability of the WAIRC to make interim awards should be retained

Objections to the creation of awards should continue to face a public interest test, with the onus of proof being on the objector.

The proposed sections 37L to 37N, empowering the WAIRC to make certain types of awards will entrench the distinction between public sector and private sector workers. This will continue the culture of different rights for public sector workers and private sector workers undertaking community services work. As asserted before, there should be no such distinction.

Recommendation

The powers of the Commission to make ‘Public Sector Awards’ should be contingent on public sector workers having the same rights as those in the private sector.

Regarding proposed section 37M ‘Limitations on the making of awards’, UnionsWA appreciates that the government’s goal is encourage moves to large coverage modern awards, however we are dissatisfied with the lack of safeguards against lowest common denominator outcomes for award-reliant workers. Maintaining present rights and conditions for those workers should not be subordinated to making a particular type of award. Such safeguards are needed to secure the Premier’s guarantee that ‘no-one will be worse off under this legislation’.

Recommendation

There must be safeguards in legislation to protect the present rights and conditions of

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award-reliant workers when considering whether to make an award.

Award modernisation process

There is nothing in the proposals around award modernisation in section 37P of the Amendment Bill that will protect the conditions of award-reliant workers and deliver on the Premier’s guarantee that that ‘no-one will be worse off under this legislation’.

The government must commit to rigorous safeguards for both current and future workers impacted by award modernisation. Those principles should form part of modern awards and be appended to those awards as a schedule. They should also be part of the award safety net for those employees. UnionsWA contends those safeguard principles should include that

All employees are in receipt of wages and conditions no less than the modern award as soon as possible.

Movement to the safety net must continue to meet the requirement that the making of the modern award not disadvantage employees.

No employee shall suffer a reduction in wages or conditions or be worse off as a result of transition to the modern award.

No new employee who would, but for the introduction of the modern award, have been entitled to superior wages and conditions, shall suffer a reduction in wages and conditions as a result of the operation of the modern award.

A rate of pay received as a result of transition shall be considered salary for all purposes as defined in the modern award.

Each award shall contain a supersession clause and a savings clause.

An employee in receipt of a rate of pay greater than the rate of pay set out in the relevant modern award shall continue to receive that higher rate of pay or, alternatively, may be moved without detriment to the next highest modern award salary point.

An employee on a transitional rate of pay who is promoted shall not suffer any loss of pay as a result of that promotion.

Each penalty and/or loading will be considered on a standalone basis.

An employee in receipt of penalties and/or loadings equivalent to those provided for in the modern award shall be paid the penalties and loadings as specified in the modern award

An employee in receipt of penalties and/or loadings less than that provided for in the modern award shall be entitled to the penalties and/or loadings as provided for in the modern award

An employee in receipt of penalties and/or loadings in excess of that provided for in the modern award, shall continue to receive such penalties and/or loadings while they occupy the same position as (or a position that is comparable to) the position they occupied

Where, but for award modernisation, an employee would be entitled to a penalty and/or loading in excess of that provided for in the modern award, they shall receive the higher penalty and/or loading

No employee shall be required to alter their existing roster or hours of work arising from changes to hours or work arrangements in a modern award without agreement.

Recommendation

UnionsWA’s proposed safeguard provisions for employees covered by modern awards should be included in each modern award and be appended them as a schedule. They

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should form part of the award safety net for both current and future employees.

No appeals from a decision of the Commission

Section 90 of the IR Act provides for limited appeals on the basis of decisions beyond power, error of law or denial of the right to be heard. It is not reasonable to attempt to remove appeal rights from these processes. They are not often used and no evidence is provided that they are a burden on the WAIRC.

Recommendation

Allow appeals to the Commission’s award modernisation decisions under Section 90 of the Industrial Relations Act.

Making further modern awards

The proposed section 37Q sets out the additional award making functions of the WAIRC during the award modernisation process. It is not clear in the proposed legislation as to whether organisations can also apply to create Modern State Awards, rather than creation only occurring on the WAIRC’s own motion. If award making functions are restricted to the WAIRC the award modernisation process will be ‘top down’ and inflexible.

Recommendation

Unions and employers should be able to apply to the Commission to create Modern State Awards.

Consultation with the parties during the modern award process

The proposed section 37R classifies unions as ‘any other person’ considered as having an interest ‘in any relevant matter’ in the modern award process. Unions should be heard as parties to those Awards they have created and continue to use, rather than simply a ‘person’ considered by the WAIRC to have an interest. A ‘consultation only’ process will limit the opportunity of employee organisations to test the veracity of, and respond to, employer submissions.

Recommendation

The Legislation must refer to unions as parties to award creation, not just as organisations to be consulted.

The Form and Content of State Awards

The proposed section 37T states that

Modern State awards must be made by the Commission in terms that — (a) are simple to understand; and (b) avoid unnecessary duplication between modern State awards; and

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(c) are in accordance with the State employment standards and otherwise provide a fair minimum safety net of terms and conditions for employees; and (d) are economically sustainable; and (e) facilitate the efficient and productive organisation and performance of work.

The points (a), (b), (c), and (e) provide greater focus on economic and employer factors than do similar points in the FW Act’s ‘Modern Awards Objective.12 Factor (d), concerning economic sustainability, has not previously been a factor in the State system. Given the knowledge gaps about businesses that operate under the state IR system, it will be difficult for the parties and the WAIRC to assess award modernisation. Using such criteria will be particularly a problem under the short time frame envisaged for the modern award process.

The FW Act Modern Award Objective includes important principles which have been left out of this Bill such as

relative living standards and the needs of the low paid

the need to promote social inclusion through increased workforce participation

the principle of equal remuneration for work of equal or comparable value

The Ministerial request on award modernisation at the Federal level also required the Australian Industrial Relations Commission (now the Fair Work Commission) to consider the following factors

(e) the need to help prevent and eliminate discrimination on the grounds of race, colour, sex, sexual preference, age, physical or mental disability, marital status, family responsibilities, pregnancy, religion, political opinion, national extraction or social origin and to promote the principle of equal remuneration for work of equal value; (f) the need to assist employees to balance their work and family responsibilities effectively and to improve retention and participation of employees in the workforce; (g) the safety, health and welfare of employees; 13

These principles promoting social justice and supporting more decent wages should be included in modern awards.

Recommendation

12 S134 Modern Awards Objective

What is the modern awards objective? (1) FWA must ensure that modern awards, together with the National Employment Standards, provide a fair and relevant minimum safety net of terms and conditions, taking into account:

(a) relative living standards and the needs of the low paid; and (b) the need to encourage collective bargaining; and (c) the need to promote social inclusion through increased workforce participation; and (d) the need to promote flexible modern work practices and the efficient and productive performance of work; and (e) the principle of equal remuneration for work of equal or comparable value; and (f) the likely impact of any exercise of modern award powers on business, including on productivity, employment costs and the regulatory burden; and (g) the need to ensure a simple, easy to understand, stable and sustainable modern award system for Australia that avoids unnecessary overlap of modern awards; and (h) the likely impact of any exercise of modern award powers on employment growth, inflation and the sustainability, performance and competitiveness of the national economy.

13 Variation of Award Modernisation Request under section 576C(4), issued by Julia Gillard, Minister for

Employment and Workplace Relations on 18 December 2008

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State based award modernisation as proposed has only minimal principles to guide it. There needs to be a more comprehensive set of principles such as those in the FW Act’s ‘Modern Awards Objective’.

Time and resources for the Award modernisation process

The proposed section 37U sets the time frame for award modernisation as 12 months after the commencement of the amending Act.

One year is too short a period for such an important task as award modernisation. Government should allow more than one year and commit to providing funding to the peak bodies to undertake award modernisation. If more time and resources are not allocated for the award modernisation process it is highly likely that award-reliant workers will be disadvantaged by the outcomes of a rushed and underfunded process. Award modernisation will more likely take two years and require fully funded full time staff.

Recommendations

The timeframe proposed for award modernisation is too short. Instead of 12 months it should be two years.

Government should commit to providing funding to peak bodies for full time staff to undertake award modernisation.

Basis for cancelling awards

The proposed section 39A on the duration of an award states that

(2) An award must be expressed to remain in force until it is cancelled, suspended or replaced under this Act.

The current section 47 of the IR Act provides only limited basis for cancelling an award. The proposed provision is worded in such a way as to increase the possibility of cancellation, and therefore may be open to abuse by militant employers.

Recommendation

There must be safeguards against employer groups making vexatious applications to cancel awards.

Removing provision for Boards of Reference for Awards

The proposed section 40AA(3) states that

The Commission must not vary an award so that provision is made for a Board of Reference or other entity or person, apart from the Commission, to have any functions under the award of the kind referred to in section 48(6) deleted by the amending Act section 97.

No evidence or explanation is provided in the Bill or accompanying documents as to why current arrangements for boards of reference are a problem. New modern awards should be allowed to

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have fully functional boards of reference, and existing awards should not have the powers of their boards of reference removed by the award stripping that may occur during the proposed four yearly review process (see below).

Recommendation

New Awards should continue to have fully functional Boards of Reference.

Removing the Commission’s power to vary awards on its own motion to meet statutory and minimum wage requirements

Detecting the current section 40B of the IR Act will mean the WAIRC has less capacity to respond to changes in laws and situations such as award variations. Instead that power will be confined to four yearly reviews of awards. This adds an unnecessary constraint to the Commission’s ability to do its job. No problem with the current system is identified as requiring this change.

Recommendation

WAIRC must retain the power to vary awards on its own motion, to meet statutory and minimum wage etc requirements.

Awards not enforced until they have been in place for 21 days

The proposed amended section 83 states that

(4A) An application can only be made for the enforcement of a provision of an award if not less than 21 days have elapsed since the first day on which the award has been published under section 93(3)

Employers should be aware of, and comply with, their respective rights and obligations under a new award from the day it is made. Allowing a 21 day ‘gap’ will advantage employers over award-reliant employees.

Recommendation

New awards should be enforceable from the day they are made.

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Industrial Agreements and Enterprise Orders

Expiry, Replacement and termination of Industrial Agreements

The proposed section 41E allows all parties to the agreement to be heard on the matter of a proposed termination. Section 41E(3) spells out a statutory test for terminating an agreement that is about to be, or has already, expired. The proposed changes are an improvement on the current provisions; however it is not clear how this process would apply to an enterprise order.

Recommendation

Changes to the collective bargaining framework that remove the ability for a party to unilaterally withdraw from a collective agreement are supported – however the Bill needs more clarity as to the proposal’s impact on enterprise orders.

Statutory conditions to be satisfied before agreements can be registered

The proposed section 41A(1) increases the number of statutory conditions with which industrial agreements must comply before they can be registered. It also increases the potential term of industrial agreements from three years to four years from the operative date. It also limits the WAIRC’s jurisdiction to make an award or order or register an industrial agreement with ‘provision for the exercise of powers of entry and inspection’ different from those provided in other parts of the Amendment Bill.

This section prevents parties to an agreement negotiating entry and inspection provisions that are appropriate for their workplaces and industries. UnionsWA addresses the problems of the new Right of Entry (RoE) regime proposed by the Amendment Bill elsewhere in this submission. This section, however, is another example of the state government trying to override the powers of the WAIRC and interfere with negotiations between parties to an agreement.

Recommendation

The proposed statutory conditions for the register of industrial agreements will hamper free collective bargaining and, particularly over matters such as Right of Entry provisions. They are also an attempt to override the powers of the WAIRC. Parties and the WAIRC should be free from this type of political interference.

The power to vary, renew or cancel and industrial agreement

The proposed deletion of section 43 by the Amendment Bill includes getting rid of sections on the WAIRC’s powers to vary an agreement for the purpose of ‘omitting or varying a provision, however expressed, that authorises the employer to stand-down an employee’. The stated reason behind this change, that ‘industrial agreements are negotiated between the parties’, lacks credibility given other changes proposed in this Amendment Bill which increase the government’s powers to micro-manage the negotiation process and override the powers of the WAIRC. The current section 43 allows parties to the agreement to apply for a variation and is thus consistent with collective agreement making. No evidence is provided for any problems with the current section.

Recommendation

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The WAIRC should retain its power to vary an agreement for the purpose of ‘omitting or varying a provision, however expressed, that authorises the employer to stand-down an employee’.

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Amendments about unfair dismissal

The introduction to this submission has outlined how vulnerable workers are over-represented with the state IR system. Such workers need more, not less job security and protection against unfair dismissal. These proposed amendments will leave the most vulnerable WA workers worse. No evidence is provided that the current system is causing problems.

Recommendation

The changes to unfair dismissal rights are opposed in total.

New terms for ‘dismissed’ and ‘unfairly dismissed’

The proposed sections 37D and E define ‘dismissed’ and ‘unfairly dismissed’ in similar terms to the FW Act clauses 385-6. However where the FW Act has a ‘Small Business Fair Dismissal Code’ there no reference to developing any similar code for the state system. Without relevant dismissal codes for affected employees, introducing these definitions into the state system gives too much power to employers.

Recommendation

The state government should consult with stakeholders on the development of Fair Dismissal Codes before it adopts definitions of dismissal that are similar to those of the Fair Work Act.

Jurisdiction of the Commission

The proposed sections 23(3)h and 37H(1) will reduce the jurisdiction of the WAIRC regarding unfair dismissal. As mentioned elsewhere in this submission, UnionsWA does not support such reductions in the power of the WAIRC – particularly on matters around dismissal.

Recommendation

The WAIRC’s jurisdiction to remedy unfair dismissal should not be limited.

Minimum employment period and period of employment

The proposed section 37C introduces the concepts of minimum employment periods into the state IR Act. This will be a diminution of the rights of employees compared to the current wording of the Act. Given the presence of vulnerable categories of workers in the state system, it is important to retain stronger employment protections in the state system than the federal system.

Recommendation

The concept of ‘minimum employment periods’ should not be introduced into the WA system for unfair dismissal. The present emphasis on agreements between employers and employees on probation periods should be retained.

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Similarly the proposal that casual employees, to show continuous service, should have to demonstrate employment on a ‘regular and systematic basis’ and ‘a reasonable expectation of continuing employment’ will increase the difficulties for those vulnerable workers making unfair dismissal claims.

Recommendation

Casual employees should not have to demonstrate employment on a ‘regular and systematic basis’ and ‘a reasonable expectation of continuing employment’ to count towards continuous service.

Concept of ‘small business employers’

The proposed section 37C also introduces the concept of the ‘small business employer’ where it did not previously exist in the state IR Act. Fair and unfair dismissals are questions of procedural fairness for which the size of an employer, or how many people they employ, should not be relevant. Once again this will increase the vulnerability of employees in the state system.

Recommendation

The concept of ‘small business employers’ should not be introduced into the WA system for unfair dismissal.

Determining a ‘genuine redundancy’

The proposed section 37D(2) introduces the ‘genuine redundancy’ concept into the state IR Act. The genuineness or otherwise of a redundancy should be up to the WAIRC to determine should the redundancy be contested. The section is also worded in such a way that it is unclear whether parties to an agreement will be able to negotiate a better redundancy requirement in the state system, or only rely on the State Employment Standards (SES).

Recommendations

The WAIRC should be able to determine what constitutes a ‘genuine redundancy’.

Parties to an award or agreement should be free to negotiate redundancy arrangements that are superior to those in the SES.

Unfair dismissal for apprentices, trainees and contract employees

The proposed section 37E(2) states that an employee has not been dismissed if

(a) the employee was employed under a contract of employment for a specified period of time, for a specified task, or for the duration of a specified season, and the employment has terminated at the end of the period, on completion of the task, or at the end of the season; or (b) the employee was a person —

(i) to whom a training contract registered under the Vocational Education and Training Act 1996 Part 7 Division 2 applied; and

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(ii) whose employment was for a specified period of time or was, for any reason, limited to the duration of the training contract, and the employment has terminated at the end of the training contract.

The exclusion of a ‘contract of employment’ employee supposedly will not apply if the substantial purpose for employing the employee was to avoid employer obligations for unfair dismissal. However they difficulty of employees demonstrating such a ‘substantial purpose’ by employers will discourage employees from bringing an unfair dismissal claim. This represents a shift in power in favour of employers.

Currently for apprentices and trainees there is no statutory ability to claim compensation for unfair termination of their training contracts. It is also the case that recent research by the Workplace Research Centre has found that apprentices and trainees are more likely to be award reliant, and on pay rates below the Henderson poverty line.14 Given the need to encourage young people to take up training opportunities, such efforts are unlikely to be assisted if apprentices and trainees cannot access the same protections as other employees under unfair dismissal legislation.

Recommendations

Proposed section 37E (2-3) adds unnecessary complications to the considerations of whether an employee under contract of employment can be considered to have been unfairly dismissed. This should be determined by the WAIRC.

Apprentices and trainees should not be excluded from accessing unfair dismissal.

Determining whether a dismissal is harsh, unjust or unreasonable

The proposed section 37F gives a list of criteria that the WAIRC ‘must take into account’ when determining if a dismissal was harsh, unjust or unreasonable. Once again this is an example of the state government attempting to micro-manage the deliberations of the WAIRC. No evidence is provided as to why the WAIRC Commissioners should need such a list to make their determination.

Recommendation

The WAIRC should determine whether a dismissal is ‘harsh, unjust or unreasonable’ without the need to refer to prescribed legislated lists of criteria.

Reducing the term by which unfair dismissal can be claimed

The proposed section 37G reduces the term in which a claim of unfair dismissal can be made from 28 days to 21 days after the dismissal takes effect. The more likely vulnerable status of employees within the state system means that they will be further disadvantaged by such a change. Employees with low awareness of their rights, or who have literacy issues, are often ‘caught out’ by the short term limits of the federal system. This will also be the case for workers in the state system.

Recommendation

14

Schutz, H, Bittman, M, Chan, S, Jakubauskas, M, Buchanan, J, The Changing Situation of Electrical Apprentices: Submission to the Modern Award Review, Fair Work Australia, Workplace Research Centre (2012), http://sydney.edu.au/business/workplaceresearch/news/2013/electrical_apprentice_pay_is_inadequate

http://sydney.edu.au/business/workplaceresearch/news/2013/electrical_apprentice_pay_is_inadequate

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WA workers should continue to be able to claim unfair dismissal within 28 days of the dismissal having taken effect.

Compensation caps and ‘shock, distress, humiliation and hurt’

The proposed section 37J says that

(4) The amount ordered by the Commission to be paid to an employee under subsection (1) must not include a component by way of compensation for shock, distress or humiliation, or other analogous hurt, caused to the employee by the manner of the employee’s dismissal. (5) The amount of compensation ordered to be paid must not exceed 6 months’ remuneration of the employee.

This is another example of the government trying to micromanage the decisions and deliberations of the WAIRC for unfair dismissal. While this is similar to section 392(4) of the FW Act is the same as this section, there is no equivalent to the accompanying FW Act sections 392(5)-(6) which have a more complex formulation of how to calculate compensation.

(5) The amount ordered by FWA to be paid to a person under subsection (1) must not exceed the lesser of:

(a) the amount worked out under subsection (6); and

(b) half the amount of the high income threshold immediately before the dismissal.

(6) The amount is the total of the following amounts:

(a) the total amount of remuneration:

(i) received by the person; or

(ii) to which the person was entitled; (whichever is higher) for any period of employment with the employer during the 26 weeks immediately before the dismissal; and

(b) if the employee was on leave without pay or without full pay while so employed during any part of that period—the amount of remuneration taken to have been received by the employee for the period of leave in accordance with the regulations.

This section is not really harmonising with the FW Act, and the sections with which the Amendment Bill does harmonise are those which seek to limit the deliberations of the WAIRC. There is no justification provided as to why the WAIRC cannot continue to make decisions about what are appropriate levels of compensation. That consideration can and should include consideration of shock, distress or humiliation, or hurt caused by the manner of the employee’s dismissal.

Recommendation

There should be no ‘cap’ for unfair dismissal compensation. The deliberations of the WAIRC should consider what is appropriate.

Adopting an adverse actions regime for WA

Despite the claim that the Amendment Bill is intended to harmonise with the FW Act, there is only a note in Division 11, Subdivision 2 ‘Termination of Employment’ stating that

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The Fair Work Act Part 6-4 Division 2 makes it unlawful for an employer to terminate a State system employee’s employment for certain reasons.

These are ‘adverse actions’, which in the federal sphere refer to the dismissal of an employee where the reason was discriminatory, the employee was a union delegate, or the dismissal was due to an employee’s temporary absence due to illness or injury.

Rather than simply noting the FW Act referring to state system employees, the Amendment Bill should fully incorporate both the unlawful termination (for unincorporated employers) and the General Protection (for employers in the public and community sectors) into the state IR system. This would promote genuine harmonisation with the FW Act.

Recommendation

The WA government should incorporate the provisions against adverse action from the FW Act into the WA IR Act, to protect workplace rights and freedom of association and to provide protection from workplace discrimination.

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General Orders (including State Minimum Wage Orders)

Date of State Wage Order

The proposed section 50A(1) changes the date before which to make a State Wage Order from 1 July to 1 September.

There is logic to having the state wage case considerations after the National Wage Order. However the last national wage decision was issued on 1 June 2012. No justification is provided as to why WA’s award-reliant workers have to wait until months later for their wage increase, nor is the question of transitional arrangements for impacted workers in the first year addressed.

The practical effect of this amendment is that Western Australian workers will be subjected to lower wages for two months longer than similar workers in other states. This result is unnecessarily disadvantageous to Western Australian workers.

Recommendations

The date from which the new State Wage Order takes effect should remain as close as possible to the National Wage Order

Changes in the date of the State Wage Order must be accompanied by higher wage increases to compensate those workers most affected by the delay.

Considerations for making the State Wage Order

The proposed section 50A(3) replaces the need to consider ‘to the extent that it is relevant, the capacity of employers as a whole to bear the costs of increased wages, salaries, allowances and other remuneration’ with ‘to the extent that it is practicable, the capacity of employers as a whole to whom the order relates to bear the costs of increased wages, salaries, allowances and other remuneration’.

By adding ‘to whom the order relates’ the Amendment Bill limits the ability of workers to argue for an increase in the minimum wage based on the broader performance of business in the WA economy. All WA workers live in the same economy, and are subject to the same cost of living pressures whether they work for larger or smaller employers. When assessing a minimum wage increase the performance of business in WA as a whole must be considered.

There are also no proposals to address the information deficit concerning which businesses are actually in the WA state IR system. By contrast the FW Act provides for ‘powers of FWA to inform itself’, including by ‘undertaking or commissioning research’ (Section 590(2)(g) of the Fair Work Act).

Recommendation

The words ‘to whom the order relates’ should not be added to the State Wage Order considerations about ‘the capacity of employers as a whole to bear the costs’ of a wage decision.

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Equal Remuneration Orders

As mentioned in our introduction, WA has the highest gender earnings gap in the country. Part 2-7 of the FW Act allows the Fair Work Commission (FWC) to make orders to ensure that there will be equal remuneration for men and women workers for work of equal or comparable value. The power is particularly important in the context of award modernisation, and the need to conduct regular reviews of those modernised awards.

Given the Amendment Bill’s proposal that an award modernisation process be undertaken within the state system, it is important that the WAIRC be given similar powers to make equal remuneration orders.

Recommendation

The WAIRC should be empowered, as is the FWC, to make Equal Remuneration Orders.

Holding hearings for the state wage case

The Amendment Bill proposes replacing sections 51BA ‘Notice of Hearing to make a General Order’ and 51BB ‘Right to be heard before General Order made’ with new sections ‘Submissions in respect of State Wage Order’ and ‘Hearings’. The new section 51BB says ‘the Commission is required to hold at least one hearing for the purposes of making a General Order’. However it makes an exception in the case of the State Wage Order, for which there is no requirement for any hearing.

This is more in keeping with the spirit of the ‘WorkChoices’ Fair Pay Commission than the Fair Work system. It is true that the FWC is not required to hold a hearing on the national minimum wage – because it is not ‘required’ to hold a hearing on any matter. The FW Act emphasises conciliation as the primary means of settling disputes.

Nevertheless the FWC does hold consultation sessions at each Annual Wage Review. They are not adversarial; rather there are specific sessions in which the minimum wage panel can question the parties.15

By contrast the Amendment Bill is encouraging the WAIRC to adopt an entirely submissions based approach. This is not harmonisation and would limit the ability of unions and civil society groups to make their cases for increasing the state wage. There should be a requirement to hold hearings for the State Wage Order, just as for other General Orders.

It may be possible to model those hearings on the format of Annual Wage Review consultations, that is: specific sessions for the parties to present their cases and respond to questions from

15 E.g. from the most recent review:

Monday 14 May: the Australian Government, Australian Chamber of Commerce and Industry, the Australian Industry Group, the Accommodation Association of Australia, and the Australian Catholic Council for Employment Relations. Monday 21 May: the Australian Council of Social Service and the Australian Council of Trade Unions.

FWA has also sometimes held regional consultations during the Wage Review – although the Act does not require them to do so.

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Commissioners. However new hearing arrangements must include the ability for the parties to invite independent experts to provide addition information. They must also be as open and accountable as possible to the WA public.

Recommendation

The requirement to hold hearings in the State Wage Case should not be abandoned; instead an approach similar to that of the Fair Work Annual Wage Review could be adopted.

Considering social inclusion in the state wage case

In the spirit of harmonising with the Fair Work Act, the State Wage Order should adopt the following ‘minimum wage objective’ into its matter to be taken into consideration: 284(1)(b)

promoting social inclusion through increased workforce participation.

In its first Annual Wage Review Decision (2009-10) the FWA Commissioners wrote that ‘We accept the position ... that social inclusion encompasses both the obtaining of employment and the pay and conditions attaching to the job concerned’. Social inclusion is promoted by ensuring that workers have access to decent work, for decent wages. Social inclusion is not achieved by increasing inequality and reducing the ability for low-paid workers to meet their needs

Recommendation

The WAIRC should consider social inclusion when determining the minimum wage, as does the Fair Work Act.

Increasing the minimum wage each year

Under section 50B ‘Setting minimum rates of pay’ the proposed 1B states that

a minimum weekly rate or amount set may differ from, or be the same as, a minimum weekly rate or amount set in the previous State Wage Order.

It is unclear why this section is needed as there appears to be no similar wording in the Fair Work Act. The present IR Act contains working that provides for a full range of increases. The Amendment Bill appears to be encouraging the WAIRC to take more opportunities to avoid increasing the minimum wage. This will be damaging to the ability of award-reliant workers to maintain their incomes against the rising costs of living and should be opposed.

Recommendation

There should be no changes to the current wording of the IR Act.

General Orders as to Public Sector Discipline

The Amendment Bill proposes deleting the entire section 51A on ‘General Orders as to public sector discipline’, on the grounds that it is unnecessary because the Public Sector Management (PSM) Act regulates the same matters.

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UnionsWA argues that the current section 51A is necessary and is not made obsolete by the PSM Act, which only applies to Public Service Officers. Certain public sector entities, and employees covered by the Government Officers Salaries Allowances and Conditions Award, are not covered by the PSM Act’s discipline provisions. They would lose ability to get a General Order from the WAIRC and have their rights reduced.

Recommendation

The Section on General Orders as to Public Sector Discipline must be retained in its entirety.

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Amendments about Organisations and Associations

Conduct resulting in disqualification from holding office

The proposed Division 6 – section 80 concerning conduct resulting in disqualification from holding office, replaces Section 74 – 80 of the IR Act.

The current Act provides that financial officials of an organisation who are in breach of the union rules, activities or finances can be prosecuted in the Industrial Magistrates Court and be disqualified for breach of duty. The new clause replaces the existing Division and includes all convictions in any Court including other countries for fraud, or dishonesty as grounds for disqualifying office holders.

Existing sections 74 to 80 of the IR Act also refer to a ‘finance official’. The WAIRC has interpreted the term ‘finance official’ broadly, covering all of an organisation’s Committee of Management members who are involved the financial affairs of the organisation including the Secretary.

UnionsWA supports the proposition that officials of registered organisations should be held to high standards in their personal and professional conduct.

UnionsWA also submits that there is no track record in WA of problems with the existing laws regarding conduct of elected union officials. No evidence is provided by the government of a problem that these changes are supposed to solve.

Of particular concern is the proposed 80B ‘Application of this Division to a person’

(a) the person — (i) has been convicted of an offence under a written law or a law of the Commonwealth, another State, a Territory, or another country, involving fraud or dishonesty and punishable on conviction by imprisonment for a period of 3 months or more; or (ii) has been convicted of, and sentenced to a term of imprisonment for, any other offence under a written law or a law of the Commonwealth, another State, a Territory, or another country, involving the intentional use of violence towards another person, the intentional causing of death or injury to another person or the intentional damaging or destruction of property;

This section assumes that other countries have similar legal and political systems as Australia. Thus a conviction in one country is as sound as a conviction in any other.

This is demonstrably not the case. Around the world workers are at risk of persecution by state authorities. They can be arrested and imprisoned on trumped up charges to stop them from exercising internationally recognised rights of freedom of association. According to the international Trade Union Congress (ITUC) Annual Survey of Violation of Trade Union rights, in the Asia Pacific region alone in 2011

In Fiji: the Fiji Trades Union Congress (FTUC) President, Daniel Urai, and Nitin Goundar, an organiser for the National Union of Hospitality, Catering and Tourism Industries Employees (NUHCTIE), were arrested, detained and charged under the Public Emergency Regulations

37


banning public assembly. They were meeting with trade unionists at the hotel where they worked to prepare for collective bargaining.16

In Bangladesh: the Garment Workers Union President Mosrefa Mishu was held in from jail from 14 December 2010 to 28 April 2011 on spurious charges of vandalism, arson, and looting associated with garment worker protests.17

In Cambodia: Sous Chantha, the head of the union affiliated to the Coalition of Cambodian Apparel Workers’ Democratic Union (C.CAWDU) at the United Apparel Garment factory in Sen Sok Khan was condemned to 10 months in jail on 24 June on drugs charges. He had been arrested in 2010. The lack of any genuine evidence during the trial exposed the fact that he had been framed. He was released on the day of the verdict, having been detained in custody whilst awaiting trial.18

In Indonesia: On 23 March 2011, the Bandung District Court declared Early Sobari and Yudhasari Pardikan, two members of Hyatt Indonesia Union Council, FSPM, at the Hyatt Bandung Regency (HBR) hotel, innocent of criminal acts. HBR had brought charges of embezzlement of USD15 against the two and suspended them from work in April 2008 in an attempt to curb their union activity.19

In Pakistan: Use of anti-terrorism legislation against textile unionists. More than 100,000 textile and garment workers went on strike in July in Faisalabad to secure a 17% pay increase that had been passed by the government but which employers refused to pay. In November, the Anti Terrorism Court sentenced six trade union leaders involved in the strike to a total of

490 years in jail on what the International Textile, Garment and Leather Workers’ Federation (ITGLWF) has described as falsified charges. The six are leaders of the Labour Qaumi Movement (LQM) in Faisalabad.20

It can be very easy in many countries for workers to gain a track record of charges and convictions while exercising and defending trade union rights. Many of these trade unionists would be ‘disqualified’ from holding office in a Western Australian state registered trade union if the current amendments are adopted.

Recommendation

There is no evidence of any problems with current provisions concerning the disqualification of union official from holding office. This section is opposed in total.

16

ITUC, Annual Survey of Violations of Trade Union Rights 2012, p.156 http://survey.ituc-csi.org/version-PDF,28.html?edition=336 17

Ibid., p.142. 18

Ibid., p.149. 19

Ibid., p.170. 20

Ibid., p.192.

http://survey.ituc-csi.org/version-PDF,28.html?edition=336

http://survey.ituc-csi.org/version-PDF,28.html?edition=336

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Freedom of Association

Inclusion of independent contractors in ‘freedom of association’ provisions

The proposed sections 96D (1-5) purport to protect independent contractors (and prospective independent contractors) as well as employees from discrimination. No explanation is provided as to why Independent contractors, being sole traders, belong in the ‘freedom of association’ section of the Industrial Relations Act. Rather these changes will encourage the spread of insecure work arrangements.

Indeed the most obvious freedom of association issue from independent contractors, that of ‘sham contracting’ is nowhere mentioned in this Act. While exact figures on sham contracting are difficult to determine, a 2011 report by the CFMEU Construction and General Division on the construction industry suggests that, Australia-wide

between November 2009 and 2010, the sham contracting workforce in construction has grown by 6,000-10,000 persons on the lower estimate, and 8,000-14,000 on the higher growth estimate.21

The report contains the following case study from WA:

In November 2010 the CFMEU uncovers a tiling company on a CBD site in Western Australia with a large number of people engaged as sham contractors using ABNs. The company agrees that workers are employees and to put them ‘on the books’ and pay correct entitlements. Evidence of this arrangement is provided to the union and the head contractor but it is later revealed that the company had continued to pay workers at a flat daily rate of $120 to $200 and had forced the workers to return the difference between their flat rate and what went into their accounts. Those who refused were either dismissed or went without wages at all until the difference had been returned to the company. Throughout this time the workers were constantly threatened with their visas being removed or being reported to immigration (some were on student visas, some on working holiday visas and some on 457 – all with different conditions attached to the visa).22

While sham contracting situations often involve Commonwealth issues (e.g. work visas), the state government also needs to act within the state IR system to prevent such sham contracting arrangements. Instead it is using the ‘freedom of association’ provisions of the Amendment Bill to allow employers to disguise sham contracting arrangements as ‘Freedom of Association’ matters. Without anti-sham contracting provisions these changes on freedom of association are a sham in and of themselves and should not go forward.

Recommendations

As sole traders, independent contractors should not be included in ‘freedom of association’ provisions. Sole traders are not accorded benefits in other industrial relations legislation.

Provisions in the legislation dealing with independent contractors should prohibit sham contracting in the state system.

21 Race to the Bottom: Sham Contracting in Australia’s Construction Industry, A report by CFMEU Construction

& General (March 2011), p.28 http://www.cfmeu.asn.au/sites/default/files/downloads/nat/reports/race-to-

the-bottom-sham-contracting-in-australias-construction-industry-2011-cfmeu-full-report.pdf 22

Ibid., p.88.

http://www.cfmeu.asn.au/sites/default/files/downloads/nat/reports/race-to-the-bottom-sham-contracting-in-australias-construction-industry-2011-cfmeu-full-report.pdf

http://www.cfmeu.asn.au/sites/default/files/downloads/nat/reports/race-to-the-bottom-sham-contracting-in-australias-construction-industry-2011-cfmeu-full-report.pdf

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Recognition of the rights of union delegates

The true gap in WA’s freedom of association laws are the recognition of the rights of Union Delegates. Delegate rights are the manifestation of the fundamental right for workers to be represented at work. In practice, this means:

Providing workers with the right to consult with union officials, in the workplace; and

Providing workers the right to have union delegates represent their workplace group.

WA IR laws should provide legislative recognition and rights to Union Delegates including:

A right to represent their union, its members and persons eligible to be members of that union;

Rights for a delegate to have discussions with their union, its members, and persons eligible to become its members;

Rights to ask persons who are eligible to be members of the union to join the union;

Rights to ask an employee or official of the union to attend the workplace;

Recognition of a delegate’s role in bargaining and a right to fully participate in bargaining with their union without interference from their employer;

Rights for delegates to hold discussions of a reasonable duration in paid work time, where those discussions involve addressing eligible members at inductions or, representing members in grievances, or it is otherwise necessary that the discussion occur at the workplace;

Rights for delegates to have private and confidential discussions with members and eligible members and their union that cannot be monitored or restricted by the employer;

The right to make reasonable use of the employer’s facilities and equipment at the workplace, including information technology to communicate with members and eligible members;

The right to hold discussions in a room that is appropriate for the discussion sought;

Obligations on employers to recognise and deal with delegates in good faith, facilitate discussions between a delegate and those they represent and consult delegates when considering any economic, technological or structural changes in the workplace;

Prohibitions on employers misleading employees about delegates’ rights, hindering or obstructing delegates exercising their rights, inducing a delegate not to exercise their rights or dealing directly with an employee represented by a delegate in a particular matter (e.g. a dispute or grievance);

Special paid leave rights for delegates to enable them to attend training in workplace relations, dispute resolution or trade union related matters.

Recommendation

Freedom of association provisions should provide legislative recognition of the rights of union delegates.

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Industrial Agents

Code of ethical conduct

The proposals around Industrial Agents in the Amendment Bill are broadly supported by UnionsWA as overdue reforms. In addition to these proposals, the government should consult with unions to formulate an enforceable code of ethical conduct for Industrial Agents.

Such a code should include:

Commitments to behave with honesty, fairness and professionalism as an agent

Obligations to demonstrate skill, care and diligence when representing client’s interests

Commitments to ethical behaviour in the course of providing representation

And an obligation to act in good faith at all times

Recommendation

There should be a Code of Ethical Conduct for Industrial Agents formulated in consultation with unions.

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Amendments about the State Employment Standards (SES)

Continuous service in transmission of business

The proposed new section 116(2) redefines ‘continuous service’ and refers to section 174(4) relating to the calculation of the length of the continuous service of an employees involved in certain transmission of business agreements.

If, under a transmission of business agreement an employee’s period of service is recognised by the second employer, the period between the termination of the employment with the first employer and the start of the employment with the second employer does not break the employee’s continuous service with the second employer, but does not count towards the length of the employee’s continuous service with the second employer.

This section is unnecessary and inconsistent with the FW Act provisions on transmission of business. There is no mention of requiring an ‘agreement’ in those FW Act provisions (Division 4 - sections 24(1-8) and Division 2 – Transfer of Instruments).

The explanatory memorandum for the legislation also discusses the repeal of the current volunteers’ exclusion, saying that the ‘repeal of this exclusion will not mean that new Part XI will automatically apply to volunteers’. More clarity is needed on this point as without such exclusion the status of volunteers becomes inconsistent with other provisions of the SES.

Recommendations

‘Continuous service’ in relation to transmission of business should not be redefined.

Under a transmission of business agreement, the period of service for a first employer should be counted towards the length of continuous service with a second employer.

Requests for leave in SES

The proposed new section 117 includes a table of items described as constituting the ‘State employment standards’.

However unlike the FW Act there is no minimum standard for requesting for flexible working arrangements. WA employees in the state IR system should have the right to such requests in the SES, particularly as the Federal government is proposing to extend that right to

workers with caring responsibilities

employees who are parents, or who have responsibility for the care of a child of school age

employees with disability

mature-age employees

workers experiencing family violence and workers providing personal care, support and assistance to a member of their immediate family or member of their household because they are experiencing family violence.23

Recommendation

23

Fair Work Act amendment broadens right to request workplace flexibility, http://deewr.gov.au/news/fair-work-act-amendment-broadens-right-request-workplace-flexibility

http://deewr.gov.au/news/fair-work-act-amendment-broadens-right-request-workplace-flexibility

http://deewr.gov.au/news/fair-work-act-amendment-broadens-right-request-workplace-flexibility

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SES should include requests for flexible working arrangements. It should also be extended to the same categories of workers as proposed by the Federal government.

‘Under-rate employees’

The table outlining the SES also includes the following

Sch. 6 Div. 1 Subdiv. 8 cl. 20(3) and (5)

Minimum amount of pay for certain ‘under-rate employees’

No further information is provided on ‘under-rate employees’ and there is no equivalent wording in the FW Act. In the Explanatory Memorandum they are described in paragraph 611 as employees ‘who by reason of old age or infirmity are unable to earn the minimum wage may be paid a lesser wage as is agreed in writing between a union and the employer.’ The inclusion of ‘under-rate employees’ in the MCE Act left those workers highly vulnerable to employers who could pressure them into ‘agreements in writing’. Those problems have now been replicated in the Amendment Bill.

Recommendation

The category of ‘under-rate employees’ needs to be reformulated to make them less vulnerable to unscrupulous employers. In particular those sections allowing such employees to effectively ‘contract out’ of the minimum wage should not be included in the SES as they represent a power imbalance in the workplace.

The SES should be implied into industrial instruments

The proposed new section 118 states that

The State employment standards extend to bind all employees and employers in the way prescribed by this Part.

Paragraph 600 of the Explanatory Memorandum states that ‘In contrast to section 5(1) of the MCE Act, the SES will not be implied into industrial agreements or contracts of employment’.

UnionsWA contends that the Amendment Bill should replicate section 5(1) MCE Act so that two causes of action are preserved: prosecuting for breach of SES; and breach of contract/industrial instrument.

Recommendation

The SES as ‘minimum conditions of employment’ should continue to be implied into industrial instruments, safeguarding contractual rights as against the employer.

Reassessing the pay scale for employees with a disability

The proposed new section 129 sets out the minimum weekly amount payable to certain employees with a disability. The Amendment Bill will define ‘employees with a disability’ by reference the

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Commonwealth Government’s ‘Supported Wage System’ – which calculates a minimum wage as a percentage of the rate corresponding to an assessed productive capacity. One of the assessment tools most commonly used by Australian Disability Enterprises was recently criticised by a Full Bench majority of the Federal Court.

The BSWAT may be fair in its application to some disabled employees. Powerful evidence was given in these cases, however, that it was unfairly skewed against the intellectually disabled. If competencies must be measured independently of productivity, consistently with the objects of the Act that should be done in such a way as to eliminate as far as possible its inequitable aspects.24

UnionsWA supports revisiting pay scale for employees with a disability provided in proposed section 129.

Recommendation

In light of the recent Nojin v Commonwealth of Australia Federal Court decision, the proposed pay scale for employees with a disability needs to be reassessed.

No cashing out of annual leave

The proposed new section 120 provides for cashing out of annual leave, subject to completion of a year of service and not more than 50% of the accrued entitlement to be cashed out.

The MCE Act provisions relating to the cashing out of leave are problematic for employees. They encourage the notion that leave as time off is simply exchangeable for money, implicitly devaluing work/life balance.

Although the proposed subsection (4) seeks to protect an employee’s right to be free from undue influence by the employer, in practical terms a provision providing for the cashing out of annual leave will favour employers who wish to pressure employees.

Furthermore, this particular provision provides only that a certain proportion of the leave must remain, which differs from the FW Act’s section 93 which provides that an entitlement to at least 4 weeks must remain with the employee.

Recommendation

There should be no cashing out of annual leave.

No exclusion of monetary entitlements for paid leave

New section 121 (4) states that

(4) In determining any rate for the purposes of this section the following are not required to be taken into account —

(a) any kind of loading;

24

Nojin v Commonwealth of Australia [2012] FCAFC 192 (21 December 2012) http://www.austlii.edu.au/au/cases/cth/FCAFC/2012/192.html

http://www.austlii.edu.au/au/cases/cth/FCAFC/2012/192.html

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(b) any kind of monetary allowance; (c) overtime or penalty rates; (d) any other separately identifiable amount (not including, in the case of an employee paid by results, the payment for those results).

UnionsWA regards all monetary entitlements (allowances, penalty rates, etc) relevant to the calculation of a paid leave entitlement.

Recommendation

All monetary entitlements (allowances, penalty rates, etc) relevant to what would have been earned had the employee worked during that period of time are relevant to determining the entitlement to paid leave and should not be excluded.

Upper limit on ordinary hours in industrial agreements

The proposed new section 122 ‘Maximum hours of work’ contains the following Subsection

(3) Nothing in this section, or section 118(2), restricts the number of ordinary hours of work that may be specified in an industrial instrument.

UnionsWA regards this section as problematic as it once again shifts power to unscrupulous employers to pressure workers into additional hours.

Recommendation

There should be upper limits on the number of ordinary hours which may be specified in an industrial agreement.

‘Authorised’ and ‘Impermissible’ pay deductions

The proposed new sections 132 and 133 constitute an extremely serious risk to the pay packets of award-reliant workers. The problems are contained in the following sections:

Section 132(2) states that The employee is entitled to have any amount so deducted paid by the employer in accordance with the employee’s instructions or in accordance with the requirements of the industrial instrument or written contract of employment that applies to the employee, or a court order or law of the State or the Commonwealth (as the case may be).

And Section 133(4) states that

The regulations may prescribe other circumstances in which a deduction or payment is reasonable or is not reasonable for the purposes of this section.

Taken together these sections mean that

Regulations not legislation will decide what’s a permissible deductions – meaning the government can change them more easily

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Employers will be able to include their ‘permissible deductions’ into a written contract with their employees, or require them to sign a form for ‘allowable government deductions’ by making it an unofficial condition of taking the job.

Examples of such ‘permitted’ deductions could include:

underpayment of ‘PAYE’ taxation

‘shrinkage’ i.e. stock which cannot be accounted for

drive off non-payments at petrol stations

till shortages

non-payment of accrued entitlements where the employer makes claims of stealing even if they make no actual report to the police report is made to the police or evidence required.

damage to stock in warehouses where it is claimed without evidence that an employee caused the damage.

The disappearance of tools and equipment where it is claimed without evidence the employee was responsible for items.

Because the employer is already authorised to make deductions from the employee’s pay – there is no recourse for the worker outside of going to Court. Sections of the workforce such as juniors, part timers, and many retail and fast food industry workers are not in a position to take such legal action.

These sections amount to a serious shift in power towards unscrupulous employers and are a danger to award-reliant vulnerable workers.

Recommendation

‘Authorised’ and ‘Impermissible’ pay deductions as proposed are open to abuse by employers. They should not be defined by regulation, or allowed to become a condition of employment.

Disclosing the purpose of personal leave

The proposed new section 140 on Personal/carer’s leave notice and evidence requirements will allow an industrial instrument to include provisions relating to the kinds of evidence an employee must provide.

It is intrusive and highly inappropriate that an employee be required to disclose the purpose for which personal leave is to be taken. Provided reasonable evidence of illness or injury is provided, the employer should not have the capacity to further intrude on the employee’s privacy and should not have a legislative right to be informed of medical matters pertaining to an employee or the employee’s family. This will be taken to mean that an employee has to disclose the nature of the illness, not just provide evidence or certification of illness.

The provisions are also written in such a way as to change the onus of proof in respect to whether absence was caused by serious/wilful misconduct, gross/wilful neglect, from the employer to employee – not for employer to demonstrate it was for that reason but for employee to demonstrate it wasn’t! While this can be overridden by an Industrial Agreement, it is a significant imposition on any employee without that protection.

Recommendation

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Employees should not be required to disclose the purpose of their personal leave.

Onus should not be on the employee to demonstrate that their personal leave absence was caused by serious/wilful misconduct, or gross/wilful neglect, by the employer.

Giving two week’s notice of leave absence

The proposed new section 143 concerning when annual leave may be taken, required to be taken or refused is a very different clause than that which it replaces from the MCE Act. It does not include right to leave where entitlement to leave is more than 12 months before that time. Nor does it include the MCE Act condition of giving employers two weeks’ notice.

Previous rights to take leave have been removed; instead agreement with the employer is required to take a period of leave.

Recommendation

SES concerning when annual leave can be taken should be the MCE Act condition of giving employers two weeks’ notice, rather than requiring an agreement with the employer.

Paid public holidays during leave

The proposed new section 144 on entitlements to public holidays falling during an annual leave period does not make it clear if employees will be paid for public holidays that fall during annual leave. All it says is employees will not be paid annual leave for these days. The section is badly worded.

Recommendation

There should be a clear entitlement to paid public holidays during leave

Capping redundancy pay

The proposed new section 165 (3) contains a table setting out redundancy pay corresponding to periods of continuous service. In contrast to section 4.4 of the Termination, Change and Redundancy (TCR) General Order, the new section sets a pay limit of 12 weeks for 7 years of continuous service or longer. This cap on redundancy pay is unfair and unwarranted.

Recommendation

Redundancy pay should not be capped at 12 weeks pay for seven years or longer.

Weakening of TCR Order’s ‘Job Search Entitlement

The TCR General Order’s section 2.2 ‘Job search entitlement’

(a) During the period of notice of termination given by the employer an employee shall be allowed up to one day’s time off without loss of pay during each week of notice for the purpose of seeking other employment.

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Appears to be being replaced by the new section 162

162. Paid leave for job interviews, entitlement to (1) An employee, other than an employee employed for the duration of a specified season, who has been informed that he or she has been, or will be, made redundant is entitled to paid leave of up to 8 hours for the purpose of being interviewed for further employment. (2) The 8 hours need not be consecutive.

This is a reduction in the flexibility needed by staff that have been made redundant and are attempting to find replacement employment.

Recommendation

The new Act should incorporate s2.2 of the TCR general order ‘Job Search Entitlement’ rather than the proposed weaker ‘entitlement to paid leave for job interviews’.

‘Introduction of Change’ and ‘Consultation before Termination’

The TCR General Order’s section on

3.1 Employer’s duty to notify

And

3.2 Employer’s duty to consult over change

Have no equivalents in the Amendment Bill. They represent a diminution in employee’s rights to be consulted about major changes that will impact theirs and their families’ lives.

Recommendation

The new Act should incorporate both the ‘Introduction of Change’ and ‘Consultation before Termination’ clauses of the TCR general order.

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Right of Entry (RoE)

No evidence of problems with current system

The Amendment Bill introduces many restrictions on the right of union members to access their representative organisations. These restrictions on Right of Entry (RoE) will

Reduce the due and proper scrutiny of the potential exploitative practices characteristic of private sector unincorporated small and medium businesses;

Impose an unnecessarily and onerously rigid and bureaucratic new regime that will override the provisions of industrial instruments that have evolved for the requirements of a specific industry

Introduce new obligations and restrictions of investigating possible breaches of Occupational Safety and Health laws – leading to more dangerous workplaces

The claims of harmonising with the FW Act; do not address the point that state RoE provisions already operate in an effective manner without problems. Indeed no ‘problems’ are present that this Amendment Bill is supposed to solve.

Recommendation

There is no evidence of any problems with current provisions concerning Right of Entry in the Western Australian industrial relations system. These changes are opposed in total.

Definition of ‘affected employer’

The proposed new section 176(2) introduces a definition of ‘affected employer’ that will have consequences for the investigation of potential breaches of industrial instruments extending beyond, but affecting, members of a union.

A person is an affected employer — (a) in relation to an entry onto premises under section 177 by a permit holder, if —

(i) the person employs a member of the permit holder’s organisation whose industrial interests the organisation is entitled to represent; and (ii) the member performs work on the premises; and (iii) the suspected contravention relates to, or affects, the member;

It will also restrict the exercise of a RoE to investigate matters that pertain to person who no longer work on the premises.

Recommendation

The proposed definition of ‘affected employer’ should not be introduced into the state IR system.

Right to investigate breaches for all workers

The proposed section 177 concerning ‘Entry to investigate suspected contravention’ will allow a union’s RoE only for suspected breaches in relation to a union member.

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By narrowing the right to investigate matters in such a way the Amendment Bill will limit the capacity for unions to ensure compliance with industrial laws, Awards and Agreements. In circumstances where the Government has often failed to adequately protect workers from being underpaid or had their rights under industrial laws violated, this will lead to greater non-compliance with industrial instruments and laws.

Recommendation

The right to investigate possible breaches should not be restricted to only those impacting union members.

Access to all necessary records when investigating a breach

The proposed new Section 178 concerning rights that may be exercised while on premises includes the restriction (1)(c) preventing inspection of a non-member record.

This section does not reflect the comparable provisions of the FW Act (Part 3-4, Division 2, Subdivision A), which allow access to non-member records under section 483AA where a certificate has been issued by the Fair Work Commission.

Unions have legitimate reasons for examining non-members records, including circumstances where union members are being discriminated against in terms of pay, conditions or hours being offered. Access to non-member records is a protection for freedom of association.

There may also be circumstances in which a non-member is benefiting from a breach of union members’ freedom of association. In those circumstances the non-member is unlikely to give written consent to access their documents. Thus these provisions directly benefit unscrupulous employers.

Recommendation

Access to non-member records should be permitted.

Timeframes for producing employment records

The proposed new Section 179 concerning ‘Later access to records or documents’

This provision is a diminution of the existing provisions requiring the production of employment records on 24 hours written notice where the documents were kept on a the premises, or where 48 hours written notice where the records or documents are kept elsewhere. The timeframe would now be

(3) The day or days specified in the notice must not be earlier than 14 days after the notice is given.

The explanatory memorandum provides no justification for changing from the existing provisions and there is no evidence to suggest that extending the timeframe to 14 days is either required or reasonable. By extending for such a period of time – offending employers have ample time to conceal evidence of their breaches of industrial law.

Recommendation

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Existing provisions on the timeframes for the production of employment records should be retained.

No restriction on employee discussion

The proposed new Section 180 concerning Right of entry to hold discussions with employees is modified by section 188(2)

The permit holder may hold discussions under section 180 only during mealtimes or other breaks.

No evidence is provided to support this restriction. Workers whose unions which have well established arrangements with employers to hold discussions with workers at appropriate times and places will have their rights to representation restricted by this proposal.

Recommendation

The right for employees to hold discussions with their union should not be restricted only to during meal or other breaks.

No restrictions on Right of Entry on Health and Safety matters

The proposed new Section 181, concerning the Right of entry to investigate suspected contravention of OSH law introduces a new and dangerous requirement that of ‘reasonable suspicion’. There is no such requirement under the present provisions.

It places an onus on the permit holder to prove the suspicion was ‘reasonable’. This will benefit occupiers and employers who can now refuse entry on the basis that there is not a ‘reasonable’ suspicion.

The only recourse for the permit holder will be to prosecute the occupier or employer because of that refusal. The purpose of Unions having a right to inspect OSH breaches is because many industries have a time critical need to investigate can be time critical and any delays in gaining entry could result in injury (or in some circumstances death) to workers.

The proposed new Section 187 requiring the production of authority documents for OSH related entry are not a harmonisation with the FW Act. Under the FW Act there is no requirement to give an entry notice when entering to investigation a breach of an OSH law unless it is to gain employee record.

The practicalities of having to provide a written entry notice when entering under for OSH purposes are difficult when visiting premises that are very large, where there are multiple ‘affected employers’ or there are limitations in getting to those employers or they have no representative present on the site to whom to give the notice.

Making it mandatory to provide a notice is cumbersome and will be inconvenient to many employers as they may have to stop what they are doing just to receive the notice. If there is going to be any requirement to provide the notice is should be consistent with the provisions of the FW Act where it needs to be produced on request.

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Recommendations

Restricting Right of Entry on OSH to matters about which there is a ‘reasonable suspicion’ will favour employers and should not be introduced.

There should be no requirement to provide notice for Right of Entry on OSH matters.

Who receives a Right of Entry notice?

The proposed new Section 185 concerning giving an entry notice or exemption certificate states at subsection (2) that

(2) Unless the Commission has issued an exemption certificate for the entry, the permit holder must —

(a) before entering premises under section 177 — give the occupier of the premises and any affected employer an entry notice for the entry;

Requiring that when a permit holder enters premises for the purpose of investigation, that the permit holder must give the occupier and any affected employer an entry notice, imposes another cumbersome restriction on entry rights. Once again no evidence is provided about any problems this provision is supposed to solve.

Recommendation

Notice for Right of Entry should be not required to be given to the employer and the occupier of premises, only the employer.

Restrictions on notice holders about where to hold discussions and the routes they take to discussions

The new section 190(1) purports to require a permit holder to

(a) conduct interviews or hold discussions in a particular room or area of the premises; or (b) take a particular route to reach a particular room or area of the premises.

This is yet another unjustified restriction on a union member’s access to their representative organisation. It will harm freedom of association and allow unscrupulous employer to force employees into situations that restrict their freedom of association.

Recommendation

There should be no restrictions placed on notice holders about where to hold discussions or how to get to where discussions will occur.

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Qualification ‘unduly hinder’ should apply to employer

The proposed Division 4 of new Part XII (new sections 192 to 196) concerning prohibitions on certain conduct in relation to right of entry contains further constrictions on Unions compared to current laws. They also blatantly favour employers.

For instance the new section 192 states that,

a permit holder must not intentionally hinder or obstruct any person

whereas the current provision (49J(5)(b)) is that an authorised representative must not have

intentionally and unduly hindered an employer or employees during their working time

The qualification to ‘unduly hinder’ has been removed, thereby lowering the threshold of what ‘hindering’ may be by a permit holder. By contrast according to the new section 193, an employer’ must not refuse or ‘unduly delay’ entry onto premises by a permit holder. In other words, an employer could still “delay entry” of a permit holder, as long as such delay is not ‘unduly’.

Recommendation

The qualification ‘unduly hinder’ should apply equally to the employer as to the permit holder in relation to hindering and obstructing conduct.

‘Fit and proper person’ tests

The proposed section 203 deals with the issue of ‘fit and proper persons’ who may qualify for an entry permit.

203. Considering application In deciding whether the official is a fit and proper person, the Commission must take into account the following permit qualification matters —

(a) whether the official has received appropriate training about the rights and responsibilities of a permit holder; (b) whether the official has ever been convicted of an offence against this Act or any other industrial law; (c) whether the official has ever been convicted of an offence against a law of the State, the Commonwealth, another State, a Territory or a foreign country, involving —

(i) entry onto premises; or (ii) fraud or dishonesty; or (iii) intentional use of violence against another person or intentional damage or destruction of property;

(d) whether the official, or any other person, has ever been ordered to pay a penalty under this Act or any other industrial law in relation to action taken by the official; (e) whether a permit issued to the official under this Part, or under a similar law of the State (no matter when in force), has been revoked or suspended or made subject to conditions; (f) whether a court, or other person or body, under another industrial law or a State or Territory OHS law, has —

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(i) cancelled, suspended or imposed conditions on a right of entry for industrial or occupational health and safety purposes that the official had under that law; or

(ii) disqualified the official from exercising, or applying for, a right of entry for industrial or occupational health and safety purposes under that law;

(g) any other matters that the Commission considers relevant.

As previously discussed in relation to qualification for holding office, the restriction on ‘whether the official has ever been convicted of an offence against a law of the State, the Commonwealth, another State, a Territory or a foreign country’ potentially rules out people from other nations who have been unfairly prosecuted for trade union activity from gaining a RoE permit in WA.

It is also the case that ‘appropriate training’ requirement in the above section is under developed and unworkable. It is not clear how the training will occur or what sort of ‘evidence’ of such training will be required by the Commission or Registrar. In relation to entry to investigate suspected OSH contraventions, section 205 states that ‘it is intended that the prescribed training will be relevant to officials’ functions and responsibilities under new Part XII’. However, there are no particulars as to what such training may be.

The experience of such ‘training’ requirements in the federal system is that they are cumbersome, bureaucratic, and serve to hamper the legitimate activities of union officials. Once again no evidence is provided of a problem that is supposed to be solved by such a test.

Recommendation

The proposed ‘fit and proper person’ qualifications are unfair and unworkable and are opposed.

Revoking Right of Entry permits

The proposed new section 200 concerning when Commission must revoke or suspend entry permit says the Commission must now impose prescribed penalties against for documented contraventions of Part XII as follows:

A suspension under subsection (1) must be for a period that is at least as long as the period (the minimum suspension period) specified in whichever of the following paragraphs applies —

(a) if the Commission has not previously taken action under subsection (1) against the permit holder — 3 months; (b) if the Commission has taken action under subsection (1) against the permit holder on only one occasion — 12 months; (c) if the Commission has taken action under subsection (1) against the permit holder on more than one occasion — 5 years.

Commission in Full Session may take action against a permit holder or an organisation even on a ‘one-off misuse’ of the right by a permit holder or organisation. This is draconian and unnecessary.

Further, the definition of the term ‘misuse’ is wider than being ‘inconsistent with (the rights/limitations) intended in Part XII’. Section 199(4)(b) defines misuse as when a permit holder ‘encourages a person to become a member in an unduly disruptive way (when exercising a right to hold discussions with employees)’.

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Further, it appears that the term ‘misuse’, may also be found in relation the proper exercise of the rights under Part XII, if the exercise of those rights are “repeatedly with the intention or with the effect of hindering, obstructing or otherwise harassing an occupier or employer’. In other words, merely ‘because the exercise of the right is excessive in the circumstances’; even though it may be consistent with the provision of Part XII.

It may be envisaged that unscrupulous, offending employer will need to be monitored by the relevant union; a situation which may indeed ‘hinder’ or ‘obstruct’ that employer, even though the exercise of the right to entry is ‘lawful’ under Part XII.

Recommendation

Existing provisions on revoking right of entry permits should be retained.

Proposed restrictions of rights if an organisation or official has misused right of entry are draconian and fall disproportionately upon unions.

Proposed mandatory lengths of suspension or revocation for a permit holder are harsh and draconian and should not be implemented.

Awards and orders or registered industrial agreements containing entry and inspection provisions additional to those in the Act

The proposed new section 212 restricts power of the Commission in making awards, orders or agreements that offend Part XII.

As discussed in previous sections concerning the powers of the WAIRC and the freedom of the parties to bargain, there should be no such restrictions on Agreement making.

UnionsWA contends, for example, that the current ROE provided by awards issued under the jurisdiction of Public Service Arbitrator (PSA) should not be regulated by proposed new Part 13 of the Amendment Bill. Currently s49H (2) recognises the ROE provisions in such awards and should remain.

Recommendation

WAIRC should be able to make awards and orders or register industrial agreements containing entry and inspection provisions that are additional to those described in the Act. Parties should be able to include any mutually acceptable provisions for union entry to a workplace, in enterprise agreements.

The proposed ‘civil penalties’ regime

The proposed new section 213 introduces Civil Penalties for contraventions of Part XII - up to $1,000 for individuals and up to $5,000 for associations and employers.

Recommendation

The proposed regime of ‘civil penalties’ are onerous for both individuals and organisations and should be opposed.

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Access to remote accommodation

Right of Entry is about the right of workers to join their union and meet with their representatives in the most convenient location. For workplaces in remote locations it can be challenging to find such locations. Often unscrupulous employers will take advantage of remote locations to restrict union access to worker accommodation villages on the grounds that they are ‘private residences’, even though the employer has control over who can access these accommodation sites.

The Amendment Bill should ensure employee’s representation rights by recognising the need for access to remote locations.

Recommendation

Access to a workplace should also include provisions to ensure

That where a union representative wishes to enter a worker accommodation village to consult with members or potential members, that union representative is permitted to do so as of right as though the worker accommodation village were a workplace proper.

That where an entire workplace is in a remote and difficult to access location, employers should proactively facilitate workers access to their union. E.g. allow reasonable time on site for worker to talk to union organisers (not just the designated breaks) if the workplace can only be reached after hours or days of travel.

Reasonable meeting locations

The proposed new section 190 includes a subsection (2) when a proposed meeting place is ‘unreasonable’

(2) Without limiting when a request under subsection (1) might otherwise be unreasonable, a request under subsection (1)(a) is unreasonable if —

(a) the room or area is not fit for the purpose of conducting the interviews or holding the discussions;

There needs to be a far more detailed provision in the Act about what constitutes a reasonable meeting place e.g. four walls, a roof, access to water. Remote site meetings are often forced to take place outside in searing heat. Access should preferably be at the crib rooms or lunch facility or similar. It should also recognise that employers often hope that, by requiring employees to walk past or through the main office areas to go to designated rooms, those employees will feel intimidated because management will know where they are going.

Recommendation

Meeting locations should be deemed ‘unreasonable’ when

the location of the meeting is exposed to the elements whilst other enclosed and air conditioned/heated rooms are available;

the location has limited seating or has insufficient capacity to accommodate all of those employees who may wish to attend;

those attending the meeting and the conduct of the meeting can be observed by the

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employer or an agent of the employer; and a site includes members or eligible members employed by different contractors,

limiting the number of contract employees who can attend.

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Conclusion

UnionsWA believes that the changes proposed in the draft Labour Relations Legislation Amendment and Repeal Bill 2012 neither harmonise with the Fair Work Act, nor benefit the workers of WA.

It contains nothing that will deliver on the Premier’s commitment to the WA Parliament that ‘no-one will be worse off under this legislation; I can guarantee that’. Those already on low pay in WA will fall further behind while costs of living continue to rise.

Should this Bill be passed as it stands, WA workers will be worse off because

Minimum wages will be eroded over time

Awards will be stripped in a rushed ‘modernisation’ process

Workplaces will be more dangerous

Australia’s largest gender earnings gap will remain unaddressed

Employees will lose unfair dismissal rights

Employees will find it harder to take leave

Employees will be vulnerable to ‘permitted deduction’ pay rip-offs by unscrupulous employers.

Thank you for the opportunity to comment on this Amendment Bill. If you would to discuss this submission further, please contact:

Meredith Hammat UnionsWA Secretary, UnionsWA

Or

Tim Dymond Research Officer, UnionsWA

Response of UnionsWA to the proposed Labour Relations ... · proposed Labour Relations Legislation...

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